In 1978, the European Court of Human Rights (“ECtHR”) ruled in Ireland v. United Kingdom that the five interrogation techniques used by the British government on Northern Irish nationalist detainees amounted to inhuman and degrading treatment, but not torture.[1] Ireland had claimed that said torturous acts had been authorized at a high level within the British government.[2] Britain claimed that (1) the detainees suffered no lasting psychological effects and (2) no administrative practice to torture had been implemented, seeking to confine the blame to lower ranks such as the policemen and soldiers directly involved.[3] After Ireland refused to agree to a friendly settlement, and case proceeded to the ECtHR.[4] Court procedure at the time involved first presenting the claim before the European Human Rights Commission, who made an initial finding of torture that was unanimously overturned upon referral to the Court.[5] Even after the ECtHR decision, one particular question still remained: who ordered that the five techniques were to be used?

Enter the Pat Finucane Centre, a human rights advocacy and lobbying organization based in Northern Ireland that regularly monitors the British National Archives for declassified documents[6] related to British government’s role in the Troubles.[7] Previously-classified paper records uncovered by the Centre in 2014 indicate that the British government was privately advised as to the serious and lasting psychological effects experienced by more than one of the detainees as a result of the interrogation techniques.[8] During court proceedings in the 1970s, experts for the British government maintained that the effects were minor and unrelated to the interrogation techniques that had been used.[9] In other words, they lied.[10]

Rule 80 of the ECtHR’s rules allows a decision to be revisited in the event that a significant new fact is discovered that was previously unknown to the court nor could reasonably have been known to the requesting party.[11] In December 2014, the Irish government announced that it had filed an application for review of the 1978 judgement, following a broadcast of RTÉ documentary The Torture Files publicizing the documents unearthed in the British National Archives.[12] Based on the evidence presented in the documentary, the Irish government now alleges that the British authorities had deliberately misled the European Commission and the Court by concealing information, and that the decision to use the interrogation techniques originated at the British cabinet level.[13]

From the Irish side, the case is currently attended by an all-star legal team including Amal Clooney.[14] However, in the three years since the Irish government lodged an application for review, the ECtHR has yet to issue a decision.[15] Prior case law indicates that it is certainly possible that the original judgment could be revised. In Selmouni v. France, the court indicated that “certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future” based on the idea that the Convention governing the court is a “living instrument” that should be interpreted with present-day circumstances in mind.[16] This means that the court will assess treatment of the detainees based on current standards of torture, as opposed to 1978 standards.[17]

The revision of Ireland v. United Kingdom has serious implications outside of Europe. A reversed decision could undermine further other state governments who have relied on the 1978 decision as a basis to validate acts that are now revealed by the internal British documents as torture by the very state known to utilize the five techniques.[18] Most notably, Jay Bybee in the US Attorney General’s office quoted Ireland v. United Kingdom in the infamous torture memos, prepared to advise the Bush administration on what could be done to interrogation subjects within the bounds of the law.[19] The memos served as justification for the use of “enhanced interrogation techniques” by the CIA in the Middle East, Guantánamo Bay, and elsewhere.[20] One thing is certain—if the five interrogation techniques constituted torture in 1978, they also constituted torture in 2001 and beyond.[21]

[4] Inter-state applications to the Court are exceedingly rare. In the history of the ECtHR, a mere 23 of over 700,000 have been inter-state claims, as opposed to individual-state claims. ECtHR Overview 1959-2016, Eur. Ct. H.R (Mar. 2017), http://www.ECtHR.coe.int/Documents/Overview_19592016_ENG.pdf. See alsoRTÉ Investigations Unit: The Torture Files, RTÉ News, at 21:15 (June 4, 2014), https://www.rte.ie/news/ player/prime-time-web/2014/0604/.

[7] Spanning several decades, the Troubles refers to the Northern Ireland conflict between the nationalists, self-identified as Roman Catholic, and the unionists, self-identified Protestants. Though the British government took the official position of neutrality, British security forces conspired with the unionist side on multiple levels and occasions. See, e.g., Peter Rose, How the Troubles Came to Northern Ireland 94 (2000).

[8] One such report was written by Dr. Leigh, a medical doctor and advisor to the British government. Leigh testified before the ECtHR that the psychiatric effects experienced by the detainees were minor, and more of a result of everyday life in Northern Ireland. His testimony was inconsistent with what he had been privately advising the British government in the report. Three years after the incidents had occurred, one of the detainees was still experiencing severe psychiatric symptoms, including suicidal thoughts, tense and anxious behavior, and even sobbing at points during his interview with Dr. Leigh. Dr. Leigh further opined on paper that “one will probably have to regard [the detainee’s psychiatric symptoms] as. . .the result of the so called ‘deep interrogation’ procedures.” SeeThe Torture Files, supra note 2, at 15:05-16:25, 19:05.

[15] Prior to a 2013 reform, the ECtHR has been plagued with a backlog of cases that at one point exceeded 100,000 cases. While proactive court procedure has since shrunk the backlog by about 62%, the ECtHR is still experiencing delay, especially for cases not deemed in need of urgent attention. See European Court of Human Rights Press Release ECHR 312, Reform of the Court: Filtering of Cases Successful in Reducing Backlog (Oct. 24, 2013).